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Web photos inadmissible as evidence in case against deer hunter

State v. Ness, — N.W.2d —-, 2009 WL 3296676 (N.D. Oct. 15, 2009)

Another day, another state supreme court decision about whether web-found evidence is admissible. Yesterday our discussion was about a MySpace posting in a murder trial. (The evidence in that case was admissible.) Today it’s about pictures from the Internet in a case against a hunter accused of failing to tag the deer he had shot. (The evidence in this case was inadmissible.)

Defendant Ness was charged with violating a proclamation of the governor of North Dakota (which has the force of law) requiring hunters to “immediately” place a state-issued tag on all deer killed. At trial, his attorney cross examined the game warden who issued the citation to Ness while Ness was cutting the deer up in his front yard. In connection with this cross examination, Ness’s lawyer tried to introduce photos from the web of other hunters, to shed light on what the word “immediately” meant.

The trial court excluded the photos of other hunters. Ness was found guilty and sought review with the North Dakota Supreme Court. On appeal, the court agreed that the photos were properly excluded.

Ness argued that keeping the photos away from the jury during the game warden’s cross examination violated his constitutional right to confront his accuser. The Supreme Court rejected that argument, however, finding that the pictures of other hunters with other animals at other times were irrelevant to the present matter and would not help the jury determine whether the law was broken in this case.

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).